Supreme Court, Appellate Division, Second Department, New York.
REMSEN APARTMENTS, INC., Respondent-Appellant,
v.
Solomon NAYMAN, Appellant-Respondent, et al., Defendant.
Sept. 27, 1982.
 Landlord and tenant appealed from judgment of the Supreme Court, Kings County, 
Jones, J., entered in tenant's action for declaration as the rights of the 
parties.   The Supreme Court, Appellate Division, held that:  (1) tenant could 
assign its interest in the lease to cooperative corporation without landlord's 
consent;  (2) lower court should have granted declaratory relief;  and (3) 
certain items were not to be considered in tenant's gross income for purposes of 
computing additional net rent based on tenant's gross income.
 Affirmed as modified.
West Headnotes
[1] Landlord and Tenant  353
233k353 Most Cited Cases
Tenant could assign its interest in lease to cooperative corporation without 
landlord's consent and could take other legal steps required to convert its 
leasehold interest to a cooperative ownership.
[2] Declaratory Judgment  186
118Ak186 Most Cited Cases
Although the payment requested by the landlord in its counterclaim could be 
required only as a result of acceptance of a cooperative conversion plan by the 
Attorney General and actual sales of cooperative units, granting of declaratory 
relief that such payments would not be owed to the landlord would not be the 
equivalent of rendering an advisory opinion.
[3] Declaratory Judgment  4
118Ak4 Most Cited Cases
Where the probability of occurrence of a contingent event is great or the 
declaratory judgment may have an immediate and direct impact on the parties' 
conduct, declaratory relief should be granted.
[4] Landlord and Tenant  200.2
233k200.2 Most Cited Cases
Under lease entitling landlord to an additional net rent, above the base annual 
rent, of a sum equal to 15% of the gross income of the tenant in excess of 
$175,000, the sum received by the landlord for the assignment of its leasehold 
interest and moneys received by the assignee from its future proprietary leases 
were not gross income.
[5] Landlord and Tenant  200.2
233k200.2 Most Cited Cases
Where initial term of lease ended on December 14, 1980, and renewal term began 
on the subsequent day and lease was unclear as to whether requirement that 
tenant pay 15% of the gross rental income in excess of $175,000 applied to all 
income received in a calender year when only part of the calender year falls 
within the renewal term, tenant would be liable only for the additional net rent 
on gross income received during the period after December 15, 1980.
 **457 Dreyer & Traub, New York City (Samuel Kirschenbaum and Hannah Flamenbaum, 
New York City, of counsel, for appellant-respondent.
 Kramer, Levin, Nessen, Kamin & Soll, New York City (Charlotte M. Fischman and 
Frederick M. Lawrence, New York City, of counsel), for respondent-appellant.
 Before DAMIANI, J. P., and LAZER, MANGANO and BROWN, JJ.
 MEMORANDUM BY THE COURT.
 *1014 In an action to declare the rights of the parties with respect to certain 
provisions of a lease, defendant Solomon Nayman appeals, as limited by his 
brief, from so much of an order of the Supreme Court, Kings County, entered 
September 30, 1981, as (1) denied his cross motion for summary judgment, (2) 
dismissed his second counterclaim, (3) granted the branch of plaintiff's motion 
which sought summary judgment on its second cause of action and declared that 
plaintiff could assign its interest in the subject lease to a co-operative 
corporation without the consent of the landlord, and (4) declined to render a 
declaratory judgment with respect to the first counterclaim.   Plaintiff cross- 
appeals from so much of the same order as denied its motion "for summary 
judgment in the form of a declaratory judgment" (1) on the first cause of action 
in the complaint, and (2) on the second cause of action in the complaint, other 
than declaring that it may freely assign its leasehold interest to a co-
operative corporation without the landlord's consent.
 Order modified, on the law, (1) by deleting clause (b) of the second decretal 
paragraph and substituting a provision granting plaintiff's motion for summary 
judgment on its first cause of action as well as the second, and (2) by deleting 
the third, sixth and seventh decretal paragraphs and substituting provisions (a) 
declaring that plaintiff has no obligation under the lease to pay any additional 
net rent for moneys received by it from tenants at 100 Remsen Street for the 
calendar year 1980 and (b) declaring that plaintiff has no liability to 
defendant Solomon Nayman with respect to any moneys it may receive from the 
assignment of its long-term leasehold interest to a co- operative corporation.   
As so modified, order **458 affirmed insofar as appealed from, with $50 costs 
and disbursements to plaintiff.
 [1] We agree with Special Term's determination "that plaintiff mayassign its 
interest in the lease to a cooperative corporation without [the] landlord's 
consent;  and take other legal steps *1015 required to convert its leasehold 
interest to a cooperative ownership, without the landlord's consent and without 
incurring a default or termination of the lease agreement, which adjudication 
shall not infringe upon the right, responsibility and authority of the Attorney 
General of the State of New York to make any determination he deems advisable 
and appropriate in regard to the acceptance or rejection of the aforesaid 
cooperative plan in the event it is submitted to him for acceptance or 
rejection" (see Rowe v. Great Atlantic & Pacific Tea Co., 46 N.Y.2d 62, 412 
N.Y.S.2d 827, 385 N.E.2d 566).
 [2][3] Special Term erred, however, in failing to render a declaratory judgment 
with respect to that portion of the second counterclaim that seeks to hold the 
plaintiff tenant responsible for all income received by way of the purchase 
price for the assignment and for the value of the sponsor retained stock as 
additional net rent pursuant to paragraph 38 of the lease.   Although the 
payment requested in the counterclaim could only be required, if at all, as the 
result of acceptance of a co-operative conversion plan by the Attorney- General 
and actual, subsequent sales of co-operative units, granting the declaratory 
relief sought herein would not be the equivalent of rendering an advisory 
opinion.   Where the probability of occurrence of the contingent event is great 
or the declaratory judgment may have an immediate and direct impact on the 
parties' conduct, the declaratory relief should be granted (3 Weinstein- Korn-
Miller, New York Civ.Prac., par. 3001.09b;  1333 Broadway Assoc. v. Elkay Ind. 
Sales Corp., NYLJ, Nov. 18, 1981, p. 5, col. 3).   There can be little doubt 
that the conduct of plaintiff would be affected by knowledge of whether it must 
share with Solomon Nayman (hereafter defendant) any of the conversion proceeds.
 [4] Pursuant to paragraph 38 of the lease, defendant is entitled to additional 
net rent, above the base annual rent, of "a sum equal to 15% of the gross income 
in excess of $175,000 per annum received by the Tenant in the operation of and 
from the sub-tenants of the Demised Premises during each and every calendar year 
of each renewal term."   We are unpersuaded, however, that either the sum 
received by the plaintiff for the assignment of its leasehold interest or the 
moneys received by the assignee from its future proprietary leases may be 
construed as gross income for the purpose of paragraph 38 (cf. Marlton Operating 
Corp. v. Local Textile Mills, 137 N.Y.S.2d 438, 440, Sup. [the term gross income 
does not have a definite and inflexible meaning;  it should be "defined in such 
a way as to ascertain the sense in which it was used by the parties when they 
drew the leases"];  277 Park Ave. Corp. v. New York Cent. R. Co., 106 N.Y.S.2d 
338, Sup. [moneys collected from tenants by an apartment building manager as a 
service to an on-premises valet were not gross income to the manager as they 
were neither for the "use of the demised premises" nor were they "for privileges 
therein granted"] ).  Accordingly, plaintiff is entitled to a declaration that 
it is not liable to defendant with respect to any moneys it may receive from the 
assignment of its long-term leasehold interest (see Federal Pacific Elec. Co. v. 
Rao Elec. Equip. Co., 15 A.D.2d 456, 221 N.Y.S.2d 745).
 [5] Summary judgment should also have been granted plaintiff on its first cause 
of action and on defendant's first counterclaim, both of which involve 
additional net rent which defendant claims is due for the calendar year 1980. 
This issue, which requires contract interpretation, is capable of determination 
without a trial (see General Phoenix Corp. v. Cabot, 300 N.Y. 87, 89 N.E.2d 
238).   We interpret the afore-mentioned portion of paragraph 38 of the lease as 
not requiring that plaintiff pay additional net rent on 15% of the gross rental 
income received during the entire calendar year 1980 in excess of $175,000.  The 
initial **459 term of the lease ended on December 14, 1980; the renewal term 
began on the subsequent day.   The lease is unclear whether the percentage 
clause applies to all income received in a calendar year where only part of the 
calendar year falls within the renewal term.   To hold that the tenant is 
responsible for payment of such additional net rent would be inequitable and a 
forfeiture, as such an interpretation *1016 is not clearly within the provisions 
of the lease (see 455 Seventh Ave. v. Hussey Realty Corp., 295 N.Y. 166, 65 
N.E.2d 761).   Plaintiff would therefore have to pay as additional net rent 15% 
of the excess of its gross income for the period December 15, 1980 through 
December 31, 1980 as exceeds $175,000.   As the gross income for this period did 
not exceed $175,000, no payment is required. Plaintiff is therefore entitled to 
summary judgment on this issue.
454 N.Y.S.2d 456, 89 A.D.2d 1014
END OF DOCUMENT
Supreme Court, Appellate Division, Second Department, New York.
REMSEN APARTMENTS, INC., Respondent-Appellant,v.Solomon NAYMAN, Appellant-Respondent, et al., Defendant.

Sept. 27, 1982.

 Landlord and tenant appealed from judgment of the Supreme Court, Kings County, Jones, J., entered in tenant's action for declaration as the rights of the parties.   The Supreme Court, Appellate Division, held that:  (1) tenant could assign its interest in the lease to cooperative corporation without landlord's consent;  (2) lower court should have granted declaratory relief;  and (3) certain items were not to be considered in tenant's gross income for purposes of computing additional net rent based on tenant's gross income.
 Affirmed as modified.

West Headnotes
[1] Landlord and Tenant  353233k353 Most Cited Cases
Tenant could assign its interest in lease to cooperative corporation without landlord's consent and could take other legal steps required to convert its leasehold interest to a cooperative ownership.
[2] Declaratory Judgment  186118Ak186 Most Cited Cases
Although the payment requested by the landlord in its counterclaim could be required only as a result of acceptance of a cooperative conversion plan by the Attorney General and actual sales of cooperative units, granting of declaratory relief that such payments would not be owed to the landlord would not be the equivalent of rendering an advisory opinion.
[3] Declaratory Judgment  4118Ak4 Most Cited Cases
Where the probability of occurrence of a contingent event is great or the declaratory judgment may have an immediate and direct impact on the parties' conduct, declaratory relief should be granted.
[4] Landlord and Tenant  200.2233k200.2 Most Cited Cases
Under lease entitling landlord to an additional net rent, above the base annual rent, of a sum equal to 15% of the gross income of the tenant in excess of $175,000, the sum received by the landlord for the assignment of its leasehold interest and moneys received by the assignee from its future proprietary leases were not gross income.
[5] Landlord and Tenant  200.2233k200.2 Most Cited Cases
Where initial term of lease ended on December 14, 1980, and renewal term began on the subsequent day and lease was unclear as to whether requirement that tenant pay 15% of the gross rental income in excess of $175,000 applied to all income received in a calender year when only part of the calender year falls within the renewal term, tenant would be liable only for the additional net rent on gross income received during the period after December 15, 1980. **457 Dreyer & Traub, New York City (Samuel Kirschenbaum and Hannah Flamenbaum, New York City, of counsel, for appellant-respondent.
 Kramer, Levin, Nessen, Kamin & Soll, New York City (Charlotte M. Fischman and Frederick M. Lawrence, New York City, of counsel), for respondent-appellant.

 Before DAMIANI, J. P., and LAZER, MANGANO and BROWN, JJ.


 MEMORANDUM BY THE COURT.
 *1014 In an action to declare the rights of the parties with respect to certain provisions of a lease, defendant Solomon Nayman appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County, entered September 30, 1981, as (1) denied his cross motion for summary judgment, (2) dismissed his second counterclaim, (3) granted the branch of plaintiff's motion which sought summary judgment on its second cause of action and declared that plaintiff could assign its interest in the subject lease to a co-operative corporation without the consent of the landlord, and (4) declined to render a declaratory judgment with respect to the first counterclaim.   Plaintiff cross- appeals from so much of the same order as denied its motion "for summary judgment in the form of a declaratory judgment" (1) on the first cause of action in the complaint, and (2) on the second cause of action in the complaint, other than declaring that it may freely assign its leasehold interest to a co-operative corporation without the landlord's consent.
 Order modified, on the law, (1) by deleting clause (b) of the second decretal paragraph and substituting a provision granting plaintiff's motion for summary judgment on its first cause of action as well as the second, and (2) by deleting the third, sixth and seventh decretal paragraphs and substituting provisions (a) declaring that plaintiff has no obligation under the lease to pay any additional net rent for moneys received by it from tenants at 100 Remsen Street for the calendar year 1980 and (b) declaring that plaintiff has no liability to defendant Solomon Nayman with respect to any moneys it may receive from the assignment of its long-term leasehold interest to a co- operative corporation.   As so modified, order **458 affirmed insofar as appealed from, with $50 costs and disbursements to plaintiff.
 [1] We agree with Special Term's determination "that plaintiff mayassign its interest in the lease to a cooperative corporation without [the] landlord's consent;  and take other legal steps *1015 required to convert its leasehold interest to a cooperative ownership, without the landlord's consent and without incurring a default or termination of the lease agreement, which adjudication shall not infringe upon the right, responsibility and authority of the Attorney General of the State of New York to make any determination he deems advisable and appropriate in regard to the acceptance or rejection of the aforesaid cooperative plan in the event it is submitted to him for acceptance or rejection" (see Rowe v. Great Atlantic & Pacific Tea Co., 46 N.Y.2d 62, 412 N.Y.S.2d 827, 385 N.E.2d 566).
 [2][3] Special Term erred, however, in failing to render a declaratory judgment with respect to that portion of the second counterclaim that seeks to hold the plaintiff tenant responsible for all income received by way of the purchase price for the assignment and for the value of the sponsor retained stock as additional net rent pursuant to paragraph 38 of the lease.   Although the payment requested in the counterclaim could only be required, if at all, as the result of acceptance of a co-operative conversion plan by the Attorney- General and actual, subsequent sales of co-operative units, granting the declaratory relief sought herein would not be the equivalent of rendering an advisory opinion.   Where the probability of occurrence of the contingent event is great or the declaratory judgment may have an immediate and direct impact on the parties' conduct, the declaratory relief should be granted (3 Weinstein- Korn-Miller, New York Civ.Prac., par. 3001.09b;  1333 Broadway Assoc. v. Elkay Ind. Sales Corp., NYLJ, Nov. 18, 1981, p. 5, col. 3).   There can be little doubt that the conduct of plaintiff would be affected by knowledge of whether it must share with Solomon Nayman (hereafter defendant) any of the conversion proceeds.
 [4] Pursuant to paragraph 38 of the lease, defendant is entitled to additional net rent, above the base annual rent, of "a sum equal to 15% of the gross income in excess of $175,000 per annum received by the Tenant in the operation of and from the sub-tenants of the Demised Premises during each and every calendar year of each renewal term."   We are unpersuaded, however, that either the sum received by the plaintiff for the assignment of its leasehold interest or the moneys received by the assignee from its future proprietary leases may be construed as gross income for the purpose of paragraph 38 (cf. Marlton Operating Corp. v. Local Textile Mills, 137 N.Y.S.2d 438, 440, Sup. [the term gross income does not have a definite and inflexible meaning;  it should be "defined in such a way as to ascertain the sense in which it was used by the parties when they drew the leases"];  277 Park Ave. Corp. v. New York Cent. R. Co., 106 N.Y.S.2d 338, Sup. [moneys collected from tenants by an apartment building manager as a service to an on-premises valet were not gross income to the manager as they were neither for the "use of the demised premises" nor were they "for privileges therein granted"] ).  Accordingly, plaintiff is entitled to a declaration that it is not liable to defendant with respect to any moneys it may receive from the assignment of its long-term leasehold interest (see Federal Pacific Elec. Co. v. Rao Elec. Equip. Co., 15 A.D.2d 456, 221 N.Y.S.2d 745).
 [5] Summary judgment should also have been granted plaintiff on its first cause of action and on defendant's first counterclaim, both of which involve additional net rent which defendant claims is due for the calendar year 1980. This issue, which requires contract interpretation, is capable of determination without a trial (see General Phoenix Corp. v. Cabot, 300 N.Y. 87, 89 N.E.2d 238).   We interpret the afore-mentioned portion of paragraph 38 of the lease as not requiring that plaintiff pay additional net rent on 15% of the gross rental income received during the entire calendar year 1980 in excess of $175,000.  The initial **459 term of the lease ended on December 14, 1980; the renewal term began on the subsequent day.   The lease is unclear whether the percentage clause applies to all income received in a calendar year where only part of the calendar year falls within the renewal term.   To hold that the tenant is responsible for payment of such additional net rent would be inequitable and a forfeiture, as such an interpretation *1016 is not clearly within the provisions of the lease (see 455 Seventh Ave. v. Hussey Realty Corp., 295 N.Y. 166, 65 N.E.2d 761).   Plaintiff would therefore have to pay as additional net rent 15% of the excess of its gross income for the period December 15, 1980 through December 31, 1980 as exceeds $175,000.   As the gross income for this period did not exceed $175,000, no payment is required. Plaintiff is therefore entitled to summary judgment on this issue.
454 N.Y.S.2d 456, 89 A.D.2d 1014
END OF DOCUMENT